Note
I respond to two articles by Ronald Dworkin to illustrate the pitfalls of using lawyerly thinking in our role as citizens. Lawyerly thinking focuses on the controversy as presented, it relies on opinion rather than facts, and it misunderstands the nature of contemporary government and market actions. NYRB published the first a year ago at the time of the Danish cartoons controversy (March); in September, it published a second, which discussed the issue of same-sex marriages among others.

Why not to think like a lawyer

As we remember the Danish cartoons controversy that erupted a year ago, and as the issue of same-sex marriages takes its course, I offer this reflection on the way we often approach marginalization of minorities by markets and by governments. I will frame my reflection as a response to two of Professor Ronald Dworkin’s pieces published in the New York Review of Books. In his March article on the Danish cartoons, he approved the discretion of Anglo-American media, defended the European press’ right to ridicule, and urged an acceptance of the right to ridicule even when constrained by holocaust related exceptions. In the second article published in September, he argues in favor of the legalizing of gay marriages on dignitary and cultural grounds. He declares that these grounds make the issue different from say religious prayer, and make civil unions an inadequate alternative.

I am disturbed by several aspects of Dworkin’s reasoning, which I will characterize as ‘lawyerly’:

Dworkin, as in his Danish cartoons piece, is more interested in addressing the problem as offered to him than in framing the problem adequately. This is analogous to the role of an adjudicator who tries to settle only the controversy presented before him. Yet the needs of a fuller understanding and of justice often demand the examination of additional parties and issues.

Dworkin at times relies more on opinion than on fact. This tends to produce principled rather than well-informed pragmatic choices. Judges and by corollary, lawyers rely on legal principle and opinion. Even common law judges seldom see themselves as making laws to address the facts. Yet making pragmatic choices informed by facts is precisely the function of citizens. Unfortunately, most of Dworkin’s stands are principled rather than pragmatic; even his pragmatic stand on religion in the pledge of allegiances couched as an exception to principled choices. Principled stands are particularly unfortunate in humanitarian matters: given the scale of injustice in the world and our tacit acceptance of those injustices, principled choices are likely to project hypocrisy rather than conviction.

Dworkin’s solutions are sometimes mal-formed because of an unfortunate understanding of markets and of the government as expressions of common intent. With notable exceptions like antitrust, markets appear before the legal system largely as a series of contracts between consenting parties for securing mutual advantages. The government, on the other hand, appears as an instrument of the majority that is capable of imposing constraints on any and all. Such a view prompts a heightened legal scrutiny of government regulations relative to market practices. Yet the consequences of market constraints are no less serious from the market unavailability of abortion facilities to the effects of inane media on the information level of Americans. Therefore, we need to focus on the nature and effect of the constraints themselves, and not overemphasize their source.

Danish Cartoons of the Prophet

Dworkin’s piece on the Danish cartoons shows up the pitfalls of such ‘lawyerly’ thinking. I will begin by laying out the main free speech issues in the order of their priority to the Danish press and government:

Holocaust sensitivities: Jyllands-Posten’s cultural editor who commissioned the prophet cartoons was sent on immediate indefinite leave after saying that he might, after review, print Iranian cartoons of the Holocaust. The editor-in-chief said that the paper would in no circumstances publish the holocaust cartoons, and the cultural editor recanted with “I am 100% with the newspaper’s line.”

Christian / market sensitivities: The editor of the Sunday edition of Jyllands-Posten turned down cartoons about Jesus’ resurrection, saying that readers would not enjoy the drawings because they would “provoke an outcry.”

Danish dairy exports: Within five days of the dramatically successful boycott of Danish dairy exports, Jyllands-Posten apologized. The apology preceded most of the violent protests and was not a response to them.

Freedom of expression: Speech affecting the three preceding drew from Jyllands-Posten, suppression and retaliation, suppression, and an apology respectively. Speech affecting the last proved to be no such encumbrance.

Muslim sensitivities: Jyllands-Posten made no apology for 3-4 months after Danish Muslims and Muslim nations protested the publication.

Dworkin allows the parties before him to frame the issue rather than framing it himself. The consequence is that he focuses primarily on Muslim sensitivities as a threat to free speech even though it was the only one of the four to be no encumbrance. As for the three that did trump freedom of speech, Dworkin mentions only the one specifically raised by one of the parties, namely, holocaust related sensitivities. This inattention to facts leads Dworkin to the misleading framing of the problem and to the inappropriate principled solution mentioned above.

A fuller attention to facts reveals the problem to be not whether there should be a right to ridicule; rather it is the extent to which large commercial entities can ridicule marginalized groups to seek commercial gain. Recall that Jyllands-Posten was the largest selling Danish newspaper at the time, and had experienced sharper circulation drops in recent years than its competitors. This is not speech that can claim freedom from regulation that it may speak truth to power; such speech is itself an exercise of power. For the minority that constitutes an insignificant market segment, it does not help to know that it is the market and not the government, which has generated the demeaning images swirling around them. There is no good reason why the law should not limit such an exercise of power, much as it limits the actions of other players like the government or of large commercial players in other markets. Such limits on speech would naturally be narrow, and limited to large commercial players. The size requirement will ensure that expression which is not a major exercise of power would stay regulated; the commercial purpose requirement will ensure that such expression is not effectively suppressed by limiting it to minor fringe players. It will safeguard against the abuse of free speech as a commodity to generate profit: a commodity that can evade the usual social cost-benefit analysis based regulations. Dworkin’s tired adherence to a principled position on free speech mixed with calls to marginalized groups to endure unequal legal limits on free speech is as inadequate a solution as his articulation of the problem is misleading. Indeed the only context for which Dworkin’s analysis is appropriate is that of the publication of the cartoons in Muslim countries, a context that he fails to mention.

Same Sex Marriages

Dworkin’s reasoning about same-sex marriages in “Three Questions for America” is similarly unfortunate. After a brilliant discussion of the teaching of evolution controversy, he argues on dignitary grounds for a principled position in favor of marriage rights for same-sex couples, and for an understanding (not a justification) of the exception of including religion in the pledge of allegiance on materiality grounds.

I will assume civil unions with full rights as the pragmatic alternative to same-sex marriages. They are politically viable in several states, yet proponents of same-sex marriages like Dworkin dismiss them as inadequate. The assumption also clarifies that Dworkin and other advocates of same-sex marriages object to the law’s embodiment of a cultural detriment even when there is no corresponding legal detriment. This is both startling and impractical. It is startling because the law is not the best arena for renegotiating cultural detriment or privilege. It is impractical because cultural inequities are generally too embedded even in law for such an effort to be little more than picking favorites. Consider the example of July 4th. Americans undertake legally favored celebrations for an event that was to perpetuate slavery for 30 years after the mother country abolished it. Blacks can justly view such legally favored celebrations as a cultural detriment, but there are few moves afoot to replace July 4th with the day that civil rights became effective.

Dworkin’s habits of view regarding the government and the market prevent him from realizing that in the absence of legal detriment, the different unions on offer resemble cultural products on a market, and hence are more akin to a market rather than government constraints. His refusal to view a fuller picture makes him appear oblivious to the fact that his principled position constitutes picking favorites. Indeed civil unions may become a new and more inclusive cultural product: one without the historical advantages/baggage of marriage, but /one capable of adequately competing with it in due course.

Any regulation for mitigating the market constraints imposed by a cultural product should follow the usual social cost-benefit analysis. Unlike the inclusion of religion in the pledge, which mandates expression that may be antithetical to a group’s beliefs, marriage laws only deny a cultural product to particular groups. Whereas an unregulated media may inflict countless fresh detriments on insignificant market segments (minorities), marriage laws only preserve an existing cultural detriment. Therefore, it is not clear to me that same-sex marriages have a compelling case in the current divided and polarized environment.

Dworkin may argue with some justification that principled positions can be useful in the pedagogical framework that his piece invokes. It is not clear to me that an American high school environment and the stage of maturation it represents is the best arena for forming self-defining opinions. Further, it is likely to exacerbate the American habit of forming opinions without much regard to evidence. When based on evidence of the effect of government recognition of same-sex relationships on religious beliefs and practices and on lifestyle choices, there may be some merit to such an experiment since high school is the last structured educational environment for many. Yet neither of Dworkin’s suggested readings, for all their eloquence and careful thinking, contain any evidence that addresses the real or imagined fears of same-sex marriage opponents.